Proceedings have been commenced by the ACCC against Reckitt Benckiser (Australia) alleging that Reckitt Benckiser has engaged in conduct contrary to the ACL in its marketing and selling of Nurofen branded products “targeting” particular pain relief, when the ACCC alleges all the products contain exactly the same active ingredient. Partner, Anne Freeman reviews the claims made.
Reckitt Benckiser (RB) markets and sells the following Nurofen branded products:
- Nurofen Migraine Pain ibuprofen lysine 342 mg tablet blister pack
- Nurofen Tension Headache ibuprofen lysine 342 mg tablet blister pack
- Nurofen Period Pain ibuprofen lysine 342 mg tablet blister pack
- Nurofen Back Pain ibuprofen lysine 342 mg tablet blister pack.
Specific pain range: The packaging of each product in the Specific Pain Range is coloured differently, refers to a different pain condition, bears the statement “FAST TARGETED RELIEF FROM PAIN” and bears the statement that the product “…IS FAST AND EFFECTIVE IN THE TEMPORARY RELIEF ASSOCIATED WITH…” the relevant pain condition.
It is alleged that between at least December 2012 and May 2014, RB marketed the Specific Pain Range on the website www. nurofen.com.au with statements such as:
- “Relieve Pain with the right types of pain mediation”.
- “(l)et us provide a guiding hand in deciding what product is right for you, your pain and your body”.
- “Nurofen has developed a range of products to target and relieve pain. If you’re looking for back pain relief or relief from period pain, tension headaches and migraines, you can find the right product for you from the list below”.
The website also contained a table which listed types of pain and suffering and “ticked” products in the Specific Pain Range referrable to the types of pain and suffering.
The ACCC alleges that by marketing and selling the Specific Pain Range in this manner, RB engaged in misleading and deceptive conduct, made false or misleading representations with respect to the performance, characteristics, uses and/ or benefits of the Specific Pain Range and engaged in conduct that is liable to mislead the public as to the nature, characteristics and/or suitability for their purpose of the Specific Pain Range products.
It is alleged that RB represented that each product in the Specific Pain Range:
- was specifically designed and/or formulated to treat the particular type of pain specified on the packaging
- had specific efficacy in treating the particular type of pain specified on the packaging
- solely and/or specifically treated the particular type of pain specified on the packaging
when each product contains exactly the same active ingredient, the Australian Register of Therapeutic Goods approved indications for each product in the Specific Pain Range are identical, each product in the Specific Pain Range can be used interchangeably to treat any and all of the pain types specified with the same level of efficacy and no product is more or less effective than the others in treating any of the symptoms shown on the packaging.
Injunctions, pecuniary penalties and the publication of a corrective notice have been sought, as well as orders for the establishment and maintenance of a Consumer Protection Law Compliance Program.
Chairman of the ACCC, Rod Sims, has stated that the retail price of the Specific Pain Range is significantly above other comparable analgesic products, and around double the price of Nurofen’s standard ibuprofen products. There is concern that consumers are purchasing more than one product in the Specific Pain Range depending on the pain relief sought.
The matter is scheduled for a case management conference in the Federal Court in Sydney on 31 March 2015. The proceedings reflect the ACCC’s priorities recently released, particularly the focus on truth in advertising and on the medical and healthcare industry.